Students Prohibited from Wearing American Flag T-Shirts to School Will Have Day in Court

SAN JOSE, Calif.—A California federal court has refused to dismiss a First Amendment lawsuit filed by The Rutherford Institute that challenges a decision by public school officials to prohibit students from wearing American flag t-shirts to school. The lawsuit alleges that the constitutional rights of students at Live Oak High School in Morgan Hill, Calif., were violated when school administrators decided that t-shirts bearing the image of the U.S. flag should be banned from school on May 5 because of the Mexican holiday “Cinco de Mayo.” In a ruling issued on Thursday, Feb. 17, 2011, District Judge James Ware denied the school district’s motion to dismiss the case, declaring, “Without free discourse, especially the right to express political views and to engage with our government institutions, our democracy is equally jeopardized.”

Alleging that the school’s decision to ban the flag t-shirts constituted viewpoint discrimination against pro-U.S.A. expression, attorneys for The Rutherford Institute filed suit against the Morgan Hill Unified School District in June 2010. A copy of the Institute’s complaint is available at www.rutherford.org.

“This is a clear and egregious violation of the free speech rights of these students,” said John W. Whitehead, president of The Rutherford Institute. “This type of discrimination and censorship cannot be allowed in our schools or it will destroy the First Amendment.”

According to the complaint, on May 5, 2010, three Live Oak High School students wore patriotic apparel to school which bore various images of the U.S. flag. During a mid-morning “brunch break,” Assistant Principal Miguel Rodriguez approached the students, allegedly informed them that they could not wear their pro-U.S.A. shirts, and gave them the option of either removing their shirts or turning them inside out. When the students refused because the options would be disrespectful to the flag, Rodriguez ordered them to go to his office. After two of the students’ parents arrived at the school, Rodriguez is alleged to have lectured the group about Cinco de Mayo and indicated that this day was not for America. Principal Nick Boden then met with the parents and students and allegedly affirmed Rodriguez’s order stating that it was inappropriate to wear pro-U.S.A. shirts to school on Cinco de Mayo.

According to the complaint filed by Rutherford Institute attorneys, two of the students were ordered to leave the school with their parents when they refused to comply with the ultimatum to conceal the U.S. flag image on their shirts. The lawsuit asserts that school officials violated the students’ free speech rights under the First Amendment, as well as their right to equal protection under the Fourteenth Amendment to the United States Constitution.